Citation Nr: 1014834
Decision Date: 04/19/10 Archive Date: 04/30/10
DOCKET NO. 06-03 553 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to total disability based on individual
unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Murray, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Marine Corps
from March 1946 to January 1948 and from January 1951 to
April 1969.
This appeal to the Board of Veterans' Appeals (Board) is from
an April 2005 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Jackson, Mississippi.
In that rating decision, the RO denied the benefits sought on
appeal.
The issue on appeal was previously before the Board in
September 2009, when it was remanded to obtain a medical
opinion addressing whether the Veteran is able to secure and
maintain substantially gainful employment (physical or
sedentary) in light of his service-connected disabilities. A
review of the record now shows three VA medical opinions that
touch and concern the question asked in the Board's September
2009 remand directives. Collectively, the medical opinions
from the reports of an October 2009 VA medical examination,
and the reports the November 2009 audiological examination
and cold injury protocol examination, substantially address
the issue of whether the Veteran's service connected
disabilities prevent him from securing or maintaining
substantially gainful employment. As there has been
substantial compliance with the requested development has
been completed, no further action to ensure compliance with
the remand directive is required. See Stegall v. West, 11
Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-
47 (1999).
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. Service connection is in effect for bilateral hearing
loss, currently rated as 40 percent disabling, tinnitus,
currently rated as 10 percent disabling, residual of cold
injuries in the upper right extremity, currently rated as 10
percent disabling, residual of cold injuries in the upper
left extremity, currently rated as 10 percent disabling,
residual of cold injuries in the lower right extremity,
currently rated as 10 percent disabling, and residual of cold
injuries in the lower left extremity, currently rated as 10
percent disabling. The Veteran's combined rating for his
service-connected disabilities is 70 percent.
2. The Veteran's service-connected disabilities are not
shown to be of such severity so as to preclude substantially
gainful employment.
CONCLUSION OF LAW
The criteria for a total rating based on individual
unemployability due to service-connected disabilities have
not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
VA is required to notify the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. VA will inform the Veteran of the type of information
and evidence that VA will seek to provide, and of the type of
information and evidence, the claimant is expected to
provide. 38 C.F.R. § 3.159(b). VA must provide such notice
to the claimant prior to an initial unfavorable decision on a
claim for VA benefits by the agency of original jurisdiction
(AOJ), even if the adjudication occurred prior to the
enactment of the VCAA. See Pelegrini v. Principi, 18 Vet.
App. 112, 119-120 (2004). These VCAA notice requirements
apply to all elements of a claim for service connection, so
VA must specifically provide notice that a disability rating
and an effective date will be assigned if service connection
is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).
Here, prior to the April 2005 rating decision, VA sent the
Veteran a notice letter in February 2005 that apprised him as
to his and VA's respective duties for obtaining evidence.
This notice letter also informed him that in order to
substantiate a claim, he must provide, or ask the Secretary
to obtain, medical or lay evidence demonstrating a worsening
in the severity of his condition. The February 2005 notice
letter also informed the Veteran of the minimum disability
percentages required for entitlement to TDIU, it also
provided the Veteran with examples of the types of medical
and lay evidence that the claimant may submit. In an October
2009 notice letter, the Veteran was informed how VA
determines the disability rating and the effective date for
the award of benefits if service connection is to be awarded.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Although the October 2009 notice was sent after the initial
adjudication, the Board finds this error nonprejudicial to
the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005). In this regard, the notice provided in the October
2009 letter fully complied with the requirements of 38 U.S.C.
§ 5103(a), 38 C.F.R. § 3.159(b), and Dingess, supra. The
claim was readjudicated in December 2009. Thus, any timing
error was cured and rendered nonprejudicial. Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as in a statement of the case or
supplemental statement of the case [SSOC], is sufficient to
cure a timing defect).
In light of the above, the Board finds that all notices
required by VCAA and implementing regulations were furnished
to the veteran and that no useful purpose would be served by
delaying appellate review to send out additional VCAA notice
letters.
In addition to its duty to notify and inform the Veteran with
regard to his claim, VA also has a duty to assist the Veteran
in the development of the claim. This duty includes
assisting the Veteran in the procurement of service treatment
records and records of pertinent medical treatment since
service, and providing the Veteran a medical examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
As to the duty to assist, VA has associated with the claims
folders the Veteran's private and VA treatment records. The
Veteran was afforded formal VA examinations in October 2009
as well as being afford an audiological examination and a
cold injury examination in November 2009. As noted above,
collectively, these medical opinions contained in these
examination reports substantially address the issue of
whether the Veteran's employability due to his service
connected disabilities. There has been substantial
compliance with the Board's September 2009 remand directive
for a medical opinion. See Stegall v. West, 11 Vet. App. 268
(1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
The Veteran has not identified, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claim that has not
been obtained. The Board finds that no additional assistance
is required to fulfill the VA's duty to assist. Smith v.
Gober, 14 Vet. App. 227 (2000), affirmed 281 F.3d 1384 (Fed.
Cir. 2002).
2. TDIU Claim
The Veteran asserts that his service-connected disabilities
prevent him from obtaining substantially gainful employment.
Service connection is in effect for hearing loss, tinnitus,
and residuals of cold injuries in both lower and both upper
extremities.
In February 2005, the RO received the Veteran's formal
application for TDIU. He reported that since August 1990 he
had been unable to work full time due to his service-
connected hearing loss and residuals of cold injuries. The
record shows that the Veteran last worked as limousine driver
in March 2003 for Peral River Resorts in Choctaw,
Mississippi. This position was part-time, and it was noted
that the Veteran's employment was terminated after he
"voluntarily quit".
Total disability will be considered to exist when there is
present any impairment of mind or body, which is sufficient
to render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340.
Under the applicable regulations, benefits based on
individual unemployability are granted only when it is
established that the service-connected disabilities are so
severe, standing alone, as to prevent the Veteran from
retaining any form of gainful employment consistent with his
education and occupational experience. 38 C.F.R.
§§ 3.340, 3.341, 4.16. In this regard, due consideration
will be given the history of the Veteran's service-connected
disability.
Under 38 C.F.R. § 4.16, if there is only one such disability,
it must be rated at least 60 percent disabling to qualify for
benefits based on individual unemployability. If there are
two or more such disabilities, there shall be at least one
disability ratable at 40 percent or more and sufficient
additional disability to bring the combined rating to 70
percent or more. 38 C.F.R. § 4.16(a).
Here, service connection is currently in effect for the
following: bilateral hearing loss, currently rated as 40
percent disabling; tinnitus, currently rated as 10 percent
disabling; residual of cold injuries in the upper right
extremity, currently rated as 10 percent disabling; residual
of cold injuries in the upper left extremity, currently rated
as 10 percent disabling; residual of cold injuries in the
lower right extremity, currently rated as 10 percent
disabling; and residual of cold injuries in the lower left
extremity, currently rated as 10 percent disabling. The
Veteran's combined rating for his service-connected
disabilities is 70 percent; he meets the schedular criteria
for consideration of unemployability under 38 C.F.R.
§ 4.16(a).
Because the schedular criteria are satisfied, the remaining
question is whether the Veteran's service-connected
disabilities, in and of themselves, preclude the Veteran from
securing or following a substantially gainful occupation.
See 38 C.F.R. § 4.16(a).
"Substantially gainful employment" is that employment "which
is ordinarily followed by the nondisabled to earn their
livelihood with earnings common to the particular occupation
in the community where the veteran resides." Moore v.
Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment
shall not be considered substantially gainful employment. 38
C.F.R. § 4.16(a). "Marginal employment," for example, as a
self-employed worker or at odd jobs or while employed at less
than half of the usual remuneration, shall not be considered
"substantially gainful employment." 38 C.F.R. 4.16(a); see
also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358
(1991).
The sole fact that a veteran has difficulty obtaining
employment, because of economic circumstances, is not enough
for a TDIU award. A higher schedular rating, in itself, is
recognition that the impairment makes it difficult to obtain
and retain employment. The central inquiry to this question
is, "whether the veteran's service- connected disabilities
alone are of sufficient severity to produce unemployability."
Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
Neither non-service connected disabilities nor advancing age
may be considered in the determination. 38 C.F.R. §§ 3.341,
4.19 (2009); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
In discussing the unemployability criteria, the Court has
indicated that, in essence, the unemployability question that
concerns the Veteran's ability or inability to engage in
substantial gainful activity, has to be looked at in a
particular manner when the thrust of the inquiry is whether a
particular job is realistically within the Veteran's
capabilities, both physically and mentally. See Moore v.
Derwinski, 1 Vet. App. 83 (1991).
In the instant case, the Veteran asserts that his service-
connected disabilities have prevented him from working at
substantially gainful employment. Here, the minimum
percentages, notwithstanding, the record does not establish
that the Veteran's service-connected disabilities render him
unemployable. Although the Veteran states that he is unable
to work because of his service-connected disabilities, in
particular due to his hearing loss, the preponderance of the
evidence does not establish that the Veteran is unable to
work solely because of his service connected disabilities.
A review of the record shows the Veteran receives VA
treatment for his service connected hearing loss and
residuals from cold injuries. The record also contains the
reports of several VA examinations performed in conjunction
with these conditions. It is noted that in an August 2005 VA
cold injury examination report, the VA examiner noted that
the Veteran reported that he had retired as a driver because
he was unable to work a 12 hour shift due to his
gastrointestinal problems, which required him to go to the
bathroom very often.
The record contains three recent VA medical opinions that
specifically touch and concern the issue of whether the
Veteran's service-connected disabilities preclude him from
securing or following a substantially gainful occupation.
The first medical opinion comes from the report of an October
2009 VA medical examination. In that examination report, the
VA examiner noted that a review of the Veteran's medical
treatment records showed that his chronic medical problems
included hypertension, urinary frequency, hyperlipidemia,
coronary artery disease, gastro esophageal reflux disease
(GERD), renal insufficiency due to left renal aneurysm,
status post repair of abdominal aortic aneurysm, thoracic
abdominal aortic aneurysm, osteoarthritis of the hip and mild
chronic anemia. The VA examiner noted that these were
significant medical conditions in addition to his service-
connected disabilities, the severity of which were
demonstrated in the November 2009 reports of VA audiological
and neurological examination. The VA examiner found that the
Veteran's "most limiting medical condition otherwise appears
to be his aneurysm." The VA examiner noted that this
condition prevents the Veteran from performing heavy physical
work and limits him to light duty work.
The next medical opinion comes from the report of a November
2009 cold injury protocol examination. In that examination
report, the VA examiner noted that the Veteran reported that
his feet and hands do not cause him much trouble. The
Veteran reported had quit his job as limousine driver because
of his gastrointestinal problems and his boss had received a
few complaints about his poor hearing. The VA examiner
observed that the Veteran had no limitation in the use of his
hands or his feet from his cold injuries. The VA examiner
found that the Veteran's residuals of cold injuries would not
prevent any kind of employment. The VA examiner deferred to
the VA audiologist on the severity of the Veteran's hearing
impairment.
The last medical opinion of record comes from the report of a
November 2009 audiological examination. In that examination
report, the VA examiner noted that the Veteran had bilateral
sensorineural hearing loss. The VA examiner found that the
Veteran's hearing loss would not preclude employment due to
the severity of his impairment; however, the examiner noted
that the Veteran's poor word recognition ability would pose
significant difficulties in most employment settings that
relied on spoken communication.
After considering all of the evidence, the Board concludes
that the evidence does not show that the Veteran is
incapable, due to his service-connected disabilities, of
performing the physical and mental acts required by
employment. None of the medical evidence of record shows
that the Veteran is unemployable. Rather, each of the three
VA medical opinions found that the Veteran is not completely
precluded from all types of employment, but he can engage in
limited types of employment. Although the October 2009 VA
examiner only addressed the severity of the Veteran's non-
service connected disabilities, he found that even the most
severe of the Veteran's medical conditions only limited him
to light duties. The November 2009 cold injury examiner
found that the Veteran's residuals of cold injuries do not
preclude any type of employment. The November 2009
audiological examiner noted that the Veteran's hearing
impairment would cause him "significant difficulties",
however, the examiner ultimately found that the severity of
the Veteran's hearing loss did not preclude him from all
types of employment.
In addition, there is no medical evidence showing that the
Veteran is service-connected disorders alone affect his
ability to obtain and maintain substantially gainful
employment. Additional difficulties which limit his
employability appear to be due to disabilities for which the
Veteran is not service-connected. Both the August 2005 and
November 2009 examination reports show that the Veteran's
non-service connected gastrointestinal problems affected his
employment as a limousine driver, because he was unable to
perform a 12 hour shift. In addition, the October 2009 VA
examiner found that the Veteran's aneurysm was a significant
medical condition which limited him to light duties.
Those disabilities, while potentially relevant to the
Veteran's overall employment prospects, are not valid for
consideration in determining whether he is entitled to a TDIU
rating. As noted above, the central inquiry here is "whether
the Veteran's service connected disabilities alone are of
sufficient severity to produce unemployability." Hatlestad,
5 Vet. App. 524. Consideration may be given to the Veteran's
education, special training, and previous work experience,
but not to his age or to the impairment caused by nonservice-
connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19;
see also Van Hoose. Moreover, although the Veteran's hearing
impairment may cause some economic inadaptability, this also
is taken into account in the assigned 40 percent disability
evaluation.
The Board has considered, and is sympathetic to the Veteran's
assertions regarding ongoing difficulty with his hearing
impairment. The problems associated with the Veteran's
hearing impairment are reflected in his current 40 percent
disability rating. Van Hoose, 4 Vet. App. at 363. The
record does not indicate that the Veteran's disability
precludes him from obtaining or sustaining substantially
gainful employment.
The recent evidence of record does not show that an award of
TDIU should be based on the history of the disabilities. See
38 C.F.R. §§ 3.340(a)(3). There is no other competent
evidence of record that supports a finding of TDIU based on
the Veteran's service-connected disabilities.
The Veteran asserts that he is unemployable due to his
service-connected disabilities, but there is no competent
evidence that his service-connected disabilities alone
preclude him from obtaining or maintaining gainful
employment. The Board thus concludes that this case presents
no unusual or exceptional circumstances that would justify a
referral of the total rating claim to the Director of the VA
Compensation and Pension Service for extra- schedular
consideration. In the absence of any evidence of unusual or
exceptional circumstances beyond what is contemplated by the
assigned combined disability rating of 70 percent, the
preponderance of the evidence is against his claim.
Accordingly, a total disability rating based upon individual
unemployability due to service-connected disabilities under
the provisions of 38 C.F.R. § 4.16(b) is not warranted.
As the preponderance of the evidence is against the claim,
the benefit-of-the-doubt doctrine is not applicable. See
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49,
53-56 (1990).
ORDER
Entitlement to a TDIU rating is denied.
____________________________________________
S. C. KREMBS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs